T 0617/18 - Holding request inadmissible in examination appeal

Key points

• In this appeal against a refusal decision, the applicant files new auxiliary requests in appeal.
• The Board summons for oral proceedings, giving no preliminary opinion (yet). The applicant withdraws the request for oral proceedings. Can the Board hold the auxiliary requests inadmissible, or must the Board first invite the applicant to comment on the admissibility objections?
• The Board: " In the present case, the appellant withdrew the request for oral proceedings after being summoned thereto by the board. The appellant also informed the board that they would not attend these oral proceedings, even though the board had not provided any provisional opinion on the issues of the present case. 
• "The appellant could well have expected that the board maintains the decision of the first instance as regards the main request and that, as regards auxiliary requests I and II, their admission into the appeal proceedings would have to be first assessed by the board before entering into a detailed examination of all the substantive issues of these requests. The criteria for such assessment are well established in the case law and based on both procedural as well as substantive considerations (cf. "Case Law", supra, V.A.5.1.2, V.A.5.2.2, V.A.5.3, and V.A.5.11.4.a)). The appellant however did not take the opportunity, as they would have had, to discuss admission of the auxiliary requests at the oral proceedings.
• "Thus, in view of the appellant's behaviour and requests on file, the board considers that the appellant's right to be heard is not breached or infringed by the board not admitting appellant's new auxiliary requests I and II into the appeal proceedings (Article 113(1) EPC)."

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t180617eu1.html

As regards appellant's right to be heard (Article 113(1) EPC)

22. In the present case, the appellant withdrew the request for oral proceedings after being summoned thereto by the board. The appellant also informed the board that they would not attend these oral proceedings, even though the board had not provided any provisional opinion on the issues of the present case.

23. The appellant could well have expected that the board maintains the decision of the first instance as regards the main request and that, as regards auxiliary requests I and II, their admission into the appeal proceedings would have to be first assessed by the board before entering into a detailed examination of all the substantive issues of these requests. The criteria for such assessment are well established in the case law and based on both procedural as well as substantive considerations (cf. "Case Law", supra, V.A.5.1.2, V.A.5.2.2, V.A.5.3, and V.A.5.11.4.a)). The appellant however did not take the opportunity, as they would have had, to discuss admission of the auxiliary requests at the oral proceedings.

24. Thus, in view of the appellant's behaviour and requests on file, the board considers that the appellant's right to be heard is not breached or infringed by the board not admitting appellant's new auxiliary requests I and II into the appeal proceedings (Article 113(1) EPC).